The Second Circuit Court of Appeals has just delivered its Opinion in Viacom v. YouTube, and it has held, unanimously, that YouTube is not entitled to summary judgment on Viacom’s $1bn copyright claim. The decision reverses the Southern District of New York’s finding that YouTube didn’t need to go to trial to determine whether it was entitled to safe-harbor protection under the DMCA.

YouTube admitted that it could be a flag, but said only Viacom could confirm its color

YouTube does not cite the relevant DMCA language in its latest series of arguments because it has no answer to it, according to the reply letter brief filed yesterday in the Second Circuit by Viacom and The Football Association (et al.). In October, the parties in Viacom’s $1bn copyright lawsuit against YouTube for historic infringements of its audio-visual works were ordered by the Court to submit further arguments on: 1) whether “storage” under the DMCA includes syndicating files to third parties on commercial terms; and 2) how knowledge of “specific” URLs can be mandated in the DMCA’s “red flag” regime, and they have now completed their filings (here and here). Viacom is seeking reversal of a 2010 decision in which District Judge Louis L. Stanton, sitting in the District Court for the Southern District of New York, sent Viacom’s lawsuit to the cutting room floor without a trial.

The briefs make for interesting reading, and this was certainly Viacom’s most aggressive submission to date. There was plenty in both sides’ filings that I have not found persuasive, or have wholeheartedly disagreed with, but two points have clearly come out. Continue reading »

Fresh off Justia this morning is Viacom and The Premier League’s reply to YouTube’s court-ordered letter brief, as covered here. A copy of the filing in the Second Circuit is below and is well worth a read. Comments will follow later today.

Here’s YouTube’s post-argument brief on the extent of the “storage” exemption from liability under the DMCA, and clarification of how their assessment of knowledge under the statute can operate in a “red flag” regime. Comments will follow in due course, but an initial review suggests a slight rowing back from the position adopted at the hearing, but no real surprises.

This is pretty big breaking news from New York. After last week’s oral argument in Viacom v. YouTube (2d. Cir. 10-3270), the Second Circuit has reportedly asked YouTube two questions regardings its affirmative defense under 17 U.S.C. § 512(c)(1) (the DMCA) to Viacom’s copyright infringement claims.

According to Twitter GC @amac, from whom I got the story, the Second Circuit has asked:

whether and how the red-flag knowledge provision [§ 512(c)(1)(A)(ii)] would apply under the Defendants’ “specific” knowledge construction of § 512(c)(1)(A); and

whether YouTube’s “syndication” of videos to third parties falls outside the scope of safe harbor protection for activities that occur “by reason of . . . storage at the direction of a user” under § 512(c)(1).

House!

The timing for this could have been better though; I submitted an article on the proceedings at 2.00am this morning, which will now have to be amended. Oh well, at least these were the two issues I had thought were going to be difficult for YouTube.

No sign of the questions having been published online yet. As soon as they are I’ll post additional details here.

UPDATE: The Order is now available below, courtesy of Justia. The questions are as stated above. YouTube has until November 1, 2011, to provide its brief; Viacom and the FA must respond by November 8, 2011. The storage question was pretty much skipped over in oral arguments, so I’m pleased it’s being looked at in more detail now (even if the limited scope of the question means the Second Circuit is already with YouTube regarding all acts other than syndication). I thought Viacom’s points about knowledge (i.e. YouTube’s interpretation renders neighboring parts of the statute redundant, so must be wrong) had a lot of force in the briefs and at the hearing, but I’m sure YouTube will have a good response already prepared. Looking forward to reading them next week…

Have you been wondering who is going to decide Viacom’s Appeal against Judge Louis Stanton’s summary judgment opinion in their $1bn lawsuit against YouTube? Me too; and now we know.

The Second Circuit has this morning updated its calendar for next week and informs us that the Panel hearing the appeal at the Federal Courthouse on Pearl St next Tuesday (October 18, 2011) will be Miner, Cabranes and Livingston C.JJ.

So, Judge Denny Chin, who presided over Bernie Madoff’s criminal trial, sentencing him to the maximum 150 years in prison, as well as claims involving the Naked Cowboy, and who earlier this year all but ended settlement prospects in the Google Books litigation, will not be participating in this round of litigation. Google might be pleased about that, given some of the comments made in his GBS order. Continue reading »

In a decision that is already attracting plenty of controversy, comments, compliments and complaints, the Court of Appeals for the Federal Circuit has held that isolated human DNA molecules are patentable, and were validly patented by Myriad, under the (US) Patents Act. See Association for Molecular Pathology et al. v. Myriad Genetics, Inc et al. (Case No 2010-1406, Decided July 29, 2011). The decision reverses in part and affirms in part the decision of Judge Sweet, sitting in the District Court for the Southern District of New York (Case No. 09-CV-4515). Continue reading »

Microsoft’s recent (US) Supreme Court defeat at the hands of Canada’s i4i will cost them almost US$300m in damages for willful infringement of the latter’s XML patent. But in the longer term, the Court’s refusal to lower the burden of proof in challenges to a patent’s validity is good news for businesses with important patent portfolios.

At issue before the Court was section 282 of the (US) Patent Act, which reads, in part, as follows (my emphasis):

Despite a flurry of comments about epic (even intergalactic) battles between good and evil, Lucasfilm’s copyright appeal against prop designer Andrew Ainsworth has been heard by the UK Supreme Court with very little media coverage. So, in case you missed it, here’s the scoop. Continue reading »

The Court of Appeals for the Second Circuit has amended its Local Rules to provide for expedited appeals in some cases, and to reduce the amount of time for parties to file their main briefs. Both take effect on December 15, 2010.

“Effective December 15, 2010, pursuant to amended LR 31.2(b), the Court of Appeals for the Second Circuit will establish an Expedited Appeals Calendar (‘XAC’) to facilitate the prompt determination of appeals from district court orders that dismiss a complaint for (a) lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1); (b) failure to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6); or (c) filing a frivolous complaint, or for any other ground specified in 28 U.S.C. §1915(e)(2).”

If an Appellant indicates that its complaint has been dismissed for any of these reasons, the Clerk will notify the parties that the appeal has been placed on the XAC. The expedited schedule will be as follows:

The Appellant’s brief will be due 35 days from the Clerk’s notification.

The Appellee’s brief will be due 35 days after the Appellant’s brief.

The Appellant’s reply will be due 14 days after Appellee’s brief.

Brief reduction

Unless an appeal has been placed on the XAC, new cases and cases pending as of December 15, 2010, an Appellant’s main brief will be due no later than 91 days (previously it was 120 days) after the “ready date”. The “ready date” is defined in FRAP 15 and LR 31.2 (a)(1)(A). The Appellee’s brief must be filed no later than 91 days after the filing of the Appellant’s brief.

Appellants and Appellees may be able to file under the previous rule if they have filed a schedule notification prior to December 15, the record is voluminous or the deadline poses an extreme hardship. According to this notice:

“An appellant who files a scheduling notification prior to December 15, 2010 may request a brief filing date pursuant to the prior 120-day rule.

An appellant who files a scheduling notification on December 15, 2010 or thereafter must request a brief filing date pursuant to the new 91-day rule, unless the record is voluminous or the deadline poses an extreme hardship pursuant to LR 31.2(a)(1)(D).

An appellee who files a scheduling notification prior to December 15, 2010 may request a brief filing date pursuant to the 120-day rule.

An appellee who files a scheduling notification on December 15, 2010 or thereafter must request a brief filing date pursuant to the new 91-day rule, unless the record is voluminous or the deadline poses an extreme hardship pursuant to LR 31.2(a)(1)(D).”

A clean version of the amendments is available here. A blacklined version can be downloaded here.